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Which is less than helpful, because those things are in conflict, obviously. I've always thought they recognized that the country and the world would change, and the Constitution would have to be malleable to reflect that. The phrase "necessary and proper" is more than anything what the power of the government is based on, yet they don't include an explanation for what that means. The Constitution as a whole does not include notes on how it is to be interpreted.

That is why they gave us a process to change things. They meant what they wrote. They understood the meaning of words. The only ambiguities in the document are the ones written into it by eyes that want to change the things in it without using the methods of redress directed within it.

The Constitution is not a "living" thing....it defines its terms clearly. They left it up to us to use its processes to change things as we deem fit in any day and age.

And I don't know why Roberts changed his mind.....but he was flat out wrong and so overreached in his reasoning that he should have been embarrassed.

That is why they gave us a process to change things. They meant what they wrote. They understood the meaning of words. The only ambiguities in the document are the ones written into it by eyes that want to change the things in it without using the methods of redress directed within it.

The Constitution is not a "living" thing....it defines its terms clearly. They left it up to us to use its processes to change things as we deem fit in any day and age.

And I don't know why Roberts changed his mind.....but he was flat out wrong and so overreached in his reasoning that he should have been embarrassed.

Instead he took a tropical vacation. Winning!

"They" didn't mean any one thing, though. That's a fallacy. Interpretations of what the Constitution meant raged at the time, with no more of a consensus over it's meaning then than we have today when a law is passed.

Take the "necessary and proper" clause again, because it's not only a vital example but a good one. Here's what it says:

The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

At the time the Constitution was ratified, Anti-Federalists were up in arms that the clause could be interpreted to give the federal government basically limitless power, while the Federalists argued that the clause only granted the authority to carry out explicitly granted powers, and that without it the Constitution would be toothless.

The Federalists won the argument and the clause stayed, but the debate over it's meaning continues today, with liberals (the Federalists, in other words) arguing for a broad reading of it and conservatives favoring the 10th amendment.

So don't sit there and say the Constitution "defines terms clearly". That's malarkey. In some places it's very clear but in some very important spots it's incredibly vague. A huge portion of the authority the federal government wields right now can be traced to "necessary and proper" and also the Commerce Clause (which gives the government the right to "regulate" commerce between the states). But what does "regulate" mean? Or "necessary"? Or "proper"?

"They" didn't mean any one thing, though. That's a fallacy. Interpretations of what the Constitution meant raged at the time, with no more of a consensus over it's meaning then than we have today when a law is passed.

Take the "necessary and proper" clause again, because it's not only a vital example but a good one. Here's what it says:

At the time the Constitution was ratified, Anti-Federalists were up in arms that the clause could be interpreted to give the federal government basically limitless power, while the Federalists argued that the clause only granted the authority to carry out explicitly granted powers, and that without it the Constitution would be toothless.

The Federalists won the argument and the clause stayed, but the debate over it's meaning continues today, with liberals (the Federalists, in other words) arguing for a broad reading of it and conservatives favoring the 10th amendment.

So don't sit there and say the Constitution "defines terms clearly". That's malarkey. In some places it's very clear but in some very important spots it's incredibly vague. A huge portion of the authority the federal government wields right now can be traced to "necessary and proper" and also the Commerce Clause (which gives the government the right to "regulate" commerce between the states). But what does "regulate" mean? Or "necessary"? Or "proper"?

Malarkey? Joe...is that you? Did you really just use the term malarkey?

Obviously youve read wikipedia and know about the Constitutional arguments. Nowhere did i say they were all in agreement. Hell, Patrick Henry gets more right every day doesn't he? But by looking at the arguments, you can obviously tell what the intentions were cant you. Now you can also see the dangers of interpreting something using todays standards when the standards of the day were quite obviously something else.

Didnt we have an example of that situation in this very forum recently?

Dont sit there and dismiss something as malarkey when you have to twist and turn words meanings to suit an argument.

Necessary and proper were defined, because the powers of the government were defined. People that stretch that meaning have agendas, and those agendas generally dont conform with the Constitutions limits on federal powers.

Malarkey? Joe...is that you? Did you really just use the term malarkey?

Why not? It's an old fashioned way of saying bull**** that's also not a totally offensive term for a discriminated social group. Cool, huh?

Obviously youve read wikipedia and know about the Constitutional arguments. Nowhere did i say they were all in agreement. Hell, Patrick Henry gets more right every day doesn't he? But by looking at the arguments, you can obviously tell what the intentions were cant you. Now you can also see the dangers of interpreting something using todays standards when the standards of the day were quite obviously something else.

You can tell what each group's intentions were, perhaps. That does not mean you can tell what the law's exact intentions were, because the law is just the law. It's just words. It does not reflect any one group's feelings about what it says.

Oh, and Patrick Henry was a jackass.

Dont sit there and dismiss something as malarkey when you have to twist and turn words meanings to suit an argument.

I'm not dismissing any particular interpretation of the law as malarkey. What I'm saying is that the notion that the people who wrote the law had one clearly definable intention... is malarkey. Because it is. Nearly every aspect of the Constitution was debated and argued over, and different phrases meant different things to different people. Only with the weight of time and judicial precedent have certain phrases come to have more solid meanings, but even those can change.

As I've told rob in some debates we've had, I'd like more amendments that unambiguously define certain rights and liberties. I think that's a better solution that libertarianism. Don't leave some of these things up for debate or interpretation, or as much as you can try to avoid that about certain things.

Part of the problem with the originalist argument you're making is that the English language itself is alive, even if people want to assume it isn't. It's changed since the 18th century and it's going to continue to change, just as the country and the world have changed. All the words can hope to do is embody a certain principle, and the hope then is to maintain that principle over time regardless of how words change to reflect that principle.

Necessary and proper were defined, because the powers of the government were defined.

Says you. But the phrase was being used to justify more expansive governmental powers within years of the Constitution's ratification. You know, when a lot of the founders were still alive.

People that stretch that meaning have agendas, and those agendas generally dont conform with the Constitutions limits on federal powers.

Taking your own interpretation of the law and putting it in the mouths of the founding fathers as if they all agreed with your interpretation... THAT is having an agenda. At least defend your take on it's merits, if you can. I don't think people should feel the need to dig up a supporting quote from Benjamin Franklin every time they have an opinion about federalism. Just state your case.

As I've told rob in some debates we've had, I'd like more amendments that unambiguously define certain rights and liberties. I think that's a better solution that libertarianism.

I'd be alright with that as well, so why are those two things mutually exclusive? Are all democrats living-constitution advocates? Couldn't you edit the amendments to unambiguously protect more liberties?

I thought Libertarianism was more about limiting the size of the federal government, having less foreign entanglement, & being more liberal with freedom & liberty, than about styles of judging. As much liberty as possible, & as little government as necessary.

Frankly, I don't quite care what they call themselves, I just want a presidency that doesn't spy on/store our internet searches, doesn't disregard due-process for the sake of convenience, & it's perfectly apparent neither the democratic nor republican party is currently the party for that. The legalization of drugs, prostitution, & gambling would be gravy as well.

I'd be alright with that as well, so why are those two things mutually exclusive?

If the Constitution defines more liberties, then by definition the power of the government would have to expand far enough to ensure them. In other words, the federal government (meaning, in this case, the Court and the Executive) would interfere more in the affairs of states and communities to ensure rights were being protected than it does now. The ability of individual communities to set standards about certain things (like obscenity standards, for example) would be superseded by federal authority over those things.

Are all democrats living-constitution advocates?

I don't know. I don't think it's something most people think or read about. But at least philosophically I suspect most are. The living constitution argument is generally used to defend liberal principles, such as equal rights, abortion rights, separation of Church and State and so on. Conservatives in general want to return to past ways of doing things and thinking about issues, and originalism is a good way of justifying that approach.

In the legal world at least they do seem to be interchangeable. The liberal justices on the Supreme Court are the living constitutionalists. "Liberal" justices as a rule also tend to favor the rights of the accused more over the rights of the state than conservative justices do, dismissing more cases on technicalities and siding with defendants more often if there's an issue with evidence gathering or other police procedures.

Couldn't you edit the amendments to unambiguously protect more liberties?

You could, I guess. But I think that kind of editing is more rare than a new amendment defining the same thing. I know the 3/5ths thing was edited out by the 13th amendment but I can't think of other examples off the top of my head.

Whatever would serve the same purpose is something I would support.

I thought Libertarianism was more about limiting the size of the federal government, having less foreign entanglement, & being more liberal with freedom & liberty, than about styles of judging. As much liberty as possible, & as little government as necessary.

You're right. I meant the libertarian position when it comes to civil liberties. I don't think "hands off" when it comes to that stuff would work as well as "defended vigorously." I suppose too much of a good thing can turn sour but that's basically what I advocate when it comes to the Bill of Rights. More of a good thing.

Frankly, I don't quite care what they call themselves, I just want a presidency that doesn't spy on/store our internet searches, doesn't disregard due-process for the sake of convenience, & it's perfectly apparent neither the democratic nor republican party is currently the party for that. The legalization of drugs, prostitution, & gambling would be gravy as well.

I agree with you on those issues. Unfortunately there's no law that protects internet searches. Has the issue been brought before a judge or a legal review board that you know of? Due process is an interesting subject we don't talk about much here on the forum, but I find reading about the different tests and their histories sort of fascinating.

Part of the problem, as I said in another thread a while back, is that the American people just aren't as interested in unimpeachable due process you or I might be. The polls show that. Gambling, though, is already pretty much legal. Not totally, but certainly more than prostitution and drugs, both of which are becoming more legal and they become more socially acceptable. And that's the thing. I mean, it bothers me that we have these puritan attitudes but I can't fault a government for reflecting the people's general attitude about something, and the attitude about drugs and prostitution and gambling have historically been pretty negative.

If the Constitution defines more liberties, then by definition the power of the government would have to expand far enough to ensure them. In other words, the federal government (meaning, in this case, the Court and the Executive) would interfere more in the affairs of states and communities to ensure rights were being protected than it does now. The ability of individual communities to set standards about certain things (like obscenity standards, for example) would be superseded by federal authority over those things.

I understand where youíre coming from, but I still donít think that makes them mutually exclusive. For instance, if you wanted to edit the 4th amendment to include online property (or introduce a new amendment that does the same thing), & the federal government could overrule states on the issue Iíd be fine with that. The more important consensus liberties that are agreed upon & unambiguously protected the better; I donít know of any Libertarians that complain about the freedom of religious practice being federally protected.

Now, I think itís a bit of a semantics game to say that just because federal authority is expanding in one aspect, makes it contradictory with the Libertarian desire to see a cumulative decrease in the size of the federal government.

Originally Posted by TheWalrus

I agree with you on those issues. Unfortunately there's no law that protects internet searches. Has the issue been brought before a judge or a legal review board that you know of? Due process is an interesting subject we don't talk about much here on the forum, but I find reading about the different tests and their histories sort of fascinating.

Part of the problem, as I said in another thread a while back, is that the American people just aren't as interested in unimpeachable due process you or I might be. The polls show that.

Yes, I get that. However, I canít get behind the rational that just because most Americans are apathetic to it means we shouldnít fault them for doing such things (not saying you donít). Youíre not supposed to do something just because you know you can get away with it. That **** is wrong, & to me would be a clear sign that whomever is passing & consenting to these laws does not have your interests at heart.

Now, I think itís a bit of a semantics game to say that just because federal authority is expanding in one aspect, makes it contradictory with the Libertarian desire to see a cumulative decrease in the size of the federal government.

I suppose it depends on what you mean by "size." Adding to the bill of rights wouldn't increase the budget of the federal government but it would increase it's power (domestically, at least). When I think of the size of government it's "power" that comes to mind first. I think most people tend to equate size with the budget, though.